Clarence Burnett (“Mr. Burnett”) reopened his Chapter 13 bankruptcy proceedings and, thereafter, moved the bankruptcy court to hold in contempt his former spouse, Nancy Jo Burnett (“Ms. Burnett”), and her subrogee, West Virginia’s Department of Health and Human Resources, Bureau of Child Support Enforcement (BCSE), for violating the terms of Mr. Burnett’s confirmed Chapter 13 repayment plan by seeking income-withholding orders against him for child- and spousal-support arrears. The bankruptcy court refused to hold Ms. Burnett or BCSE in contempt but did reduce the income withholding. On appeal, the Bankruptcy Appellate Panel (BAP) reversed the bankruptcy court’s order and reinstated the income withholdings.
Ms. Burnett’s claims for child and spousal support, as well as interest thereon, are classified under the Bankruptcy Code as “domestic support obligations.” The Code treats domestic support obligations favorably. Most notably, Section 523(a)(5) of the Bankruptcy Code excepts them from discharge and Chapter 13 provides that a debtor’s repayment “plan . . . shall provide for the full payment, in deferred cash payments, of all [domestic support obligations], unless the holder of a particular claim agrees to a different treatment of such claim,” Mr. Burnett argues that his confirmed plan explicitly authorized Ms. Burnett to return to family court only to litigate the accrued interest on her pre-petition child support claims, not the accrued interest on her spousal support or, for that matter, her pre- and postpetition spousal support principal. In this vein, Mr. Burnett relies on Bankruptcy Code Section 1322(a)(2)’s language and asserts that, by failing to object to the plan, Ms. Burnett “agreed to a
different treatment” of her domestic support obligation, notwithstanding that paragraph two of the parties’ agreed order provided differently.
Upon review, we conclude that Mr. Burnett is correct, but we do so based on Section 1327(a), not Section 1322(a)(2). Moreover, Section 1327(a) inhibits Ms. Burnett only from seeking interest on her pre-petition spousal support.
Affirmed in part and reversed in part.